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12/16/97 PEOPLE STATE ILLINOIS v. LARRY JOHNSON

December 16, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LARRY JOHNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

As Corrected January 20, 1998.

Presiding Justice McNULTY delivered the opinion of the court. Tully and Frossard, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Prosecutors charged defendant, Larry Johnson, with violation of probation. The trial court, after taking testimony from a witness when defendant was in the hospital, found him guilty as charged. Defendant appeals from the judgment.

In 1990 the Cook County grand jury returned three indictments charging defendant with delivery on three separate occasions of less than one gram of

"a substance containing a certain controlled substance, to wit: cocaine, in violation of chapter 56-1/2, section 1401 d." (Emphasis omitted.)

The trial court, in a bench trial, found defendant guilty on all three counts. On February 21, 1991, the court sentenced defendant to four years' probation on each charge, with the first year being intensive probation, and all three sentences to run concurrently. The judge emphasized that he imposed a lenient sentence to give defendant an opportunity to get help for his drug dependency through Treatment Alternatives to Street Crimes.

On May 13, 1991, police arrested defendant and charged him with possession of heroin. Prosecutors petitioned for new sentences on the three original possession charges because defendant violated the conditions of his probation. The charge remained pending by agreement of the parties for four years, while defendant responded to charges in an unrelated criminal trial which resulted in his acquittal.

At a status hearing on June 30, 1995, prosecutors informed the court that the heroin had been destroyed, so they needed to bring in the original chemist who had since moved to Arizona. Defendant demanded a speedy trial. The court set a trial date of July 27, 1995.

On the scheduled trial date defense counsel informed the court that defendant had been admitted to the cardiac unit of Cook County Hospital on Sunday, July 23, 1995, and doctors expected to release him by Sunday, July 30. Counsel called prosecutors on July 26, 1995, shortly after he learned that defendant would not be available on the scheduled trial date, but the chemist had already flown into Chicago. Defense counsel requested a continuance until Monday, July 31, so that defendant could appear in court. The prosecutor told the court that the State had to pay the chemist's airfare plus $100 per day and expenses. Defense counsel strenuously objected to beginning trial without defendant.

Although the judge accepted defense counsel's representations that defendant had been admitted to the hospital, he said:

"I don't see why the State should have to [bear] the expense of bringing ...


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